Jegendorf v. Jegendorf, 2297

• Decision Date: 27 March 1945
• Docket Number: 2297
• Citation: 61 Wyo. 277,157 P.2d 280
• Parties: GUSSIE JEGENDORF, Plaintiff and Respondent, v. ABE JEGENDORF, Defendant and Appellant
• Court: Wyoming Supreme Court

157 P.2d 280

61 Wyo. 277

GUSSIE JEGENDORF, Plaintiff and Respondent, v. ABE JEGENDORF, Defendant and Appellant

No. 2297

Supreme Court of Wyoming

March 27, 1945

Appeal from District Court, Laramie County; SAM M. THOMPSON, Judge.

Action by Gussie Jegendorf against Abe Jegendorf for divorce on the ground that the parties have lived apart for two consecutive years without cohabitation. From a judgment granting plaintiff a divorce, defendant appeals.

Affirmed.

For the plaintiff and respondent the cause was submitted on the brief and also oral argument of Ray E. Lee of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

The fact that the parties have lived apart for more than two years, or that they can not longer live together is not ground for divorce. Bonham v. Bonham, 25 Wyo. 449 172 P. 333; Donohue v. Donohue, 167 N.Y.S. 715; Averett v. Averett, 178 N.Y.S. 405; Waterman v Waterman, (Ore.) 157 P. 791; Hilleware v. Hilleware (Wash.) 158 P. 999; Hershey v. Hershey (Ore.) 254 P. 813; Kirby v. Kirby (Ark.), 42 S.W.2d 995; Mirizio v. Mirizio, 225 N.Y.S. 737; Whittaker v Whittaker (Ver.) 102 A. 1036; Metzger v. Metzger (Wash.) 203 P. 936; Schultz v. Schultz, 46 Wyo. 121, 23 P.2d 351.

It was prejudicial error in refusing to grant defendant's request for a continuance.

Appellate Courts will set aside the ruling of the lower court in denying a motion for a continuance where an abuse of discretion is shown and manifest injustice has resulted therefrom. 12 Am. Jur. Page 464, Section 23, and cases cited thereunder.

The Courts are ordinarily desirous that the defendant have a fair opportunity to be present and present his defense, and especially is this true in a divorce action. Section 89-901 Wyo. Revised Statutes, 1931. The granting of a continuance under this Section would seem to be mandatory in view of the fact of the case, and in view of Section 89-902, Wyo. Revised Statutes, 1931.

It was prejudicial error for the Court to deny the motion for a continuance and an abuse of its discretion. Eldridge v Rogers, 40 Wyo. 89, 275 P. 101; State v. Aragon, 41 Wyo. 308, 285 P. 803; 12 Am. Jr. Page 464, Section 23, and cases cited thereunder.

In taking depositions in foreign states it is prejudicial error for plaintiff's counsel to instruct witness not to answer relevant questions asked by defendant's counsel on cross examination.

Considerable liberality should be allowed in cross examination of a witness in a divorce action when a deposition is being taken, especially where the testimony is to be used in another State. In re Randall, 85 N.Y.S. 1089; In re Robert, 212 N.Y.S. 183; Ex Parte Grosswiller (Ohio) 191 N.E. 910; Wissman v. Cabaniss (Cal.) 168 P. 150; Roberson v. Kilborn (Nev.) 165 P. 220.

For the defendant and appellant the cause was submitted on the brief of Albert W. Richman of New York City, New York, and Carleton A. Lathrop of Cheyenne, Wyoming, and oral argument by Mr. Lathrop.

POINTS OF COUNSEL FOR RESPONDENT

The appellate court must assume that the evidence in favor of the successful party is true and leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. Willis v. Willis, 48 Wyo. 403, at 429, Par. 4. N.W. S. Utilities Company v. Brouilette, 51 Wyo. 132 to 149.

Where the trial court has made its findings and entered judgment the judgment will be sustained if there is any evidence to support it. Tytler v. Tytler, 15 Wyo. 319; Curran v. Curran, 51 Wyo. 217 at 222; Mahoney v. Mahoney, 43 Wyo. 157 at 160. Swanson v. Johnson, 58 Wyo. 1 at Page 7.

Where there is substantial evidence to support the judgment, it should be affirmed. Kinney v. Barnhisel, 53 Wyo. 58, at 63; Branson v. Roelofsz, et al., 52 Wyo. 101, at 113.

The right of plaintiff to have an allowance for her attorney fees is shown in the following cases: Duxstad v. Duxstad, 16 Wyo. 396; Brown v. Brown, 22 Wyo. 92; Lonabaugh v. Lonabaugh, 46 Wyo. 23, at 39-40; Burt v. Burt, 48 Wyo. 19, at 27; Davis v. Davis, 56 Wyo. 524.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is a direct appeal proceeding brought to review a judgment of the District Court of Laramie County, granting the respondent, Gussie Jegendorf, plaintiff below, a divorce from Abe Jegendorf, defendant in that Court and appellant here.

The Legislature of this State, some years ago, (Laws of Wyoming, 1939, Ch. 106), enacted a statute reading:

"A divorce from the bonds of matrimony may be obtained, in addition to the causes now provided by law and subject to the same procedure and requirements, for the following cause:

When the husband and wife have lived apart for two consecutive years without cohabitation."

The subsequent Legislature (Laws of Wyoming, 1941, Ch. 2), re-enacted this law but added after the word "cohabitation" the following language:

"* * * but not upon such ground if such separation has been induced or justified by cause chargeable in whole or material part to the party seeking divorce upon such grounds, in the action."

It was under the authority conferred by the law as thus modified that the divorce was granted in the proceeding at bar.

Concerning enactments of this character it has been said appropriately:

"The public policy of these separation statutes is based upon the proposition that where a husband and wife have lived apart for a long period of time, without any intention ever to resume conjugal relations, the best interest of society and the parties themselves will be promoted by a dissolution of the marital bond. This is a comparatively new idea in the law of domestic relations and divorce. The object of the legislation is indeed plain enough, but the statutes through which it is sought to be accomplished are by no means uniform." 51 A. L. R. 763 Note. That laws of this general type prevail in a number of the states of the union is readily gleaned from an examination of the supplemental annotations to that note in 97 A. L. R. 985, and 111 A. L. R. 867. However, we have had our attention directed to no statute exactly like the one involved in this case. Most of these enactments are more inclined to resemble that of the State of Nevada which grants an additional ground of divorce in this language:

"When the husband and wife have lived apart for five consecutive years without cohabitation the court may at its discretion grant an absolute decree of divorce at the suit of either party. Stats. 1931, p. 180, c. 111, § 1." Concerning that law the court in Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378, said: "The idea of a divorce on the ground stated is an idea of recent origin. The legislative concept embodied in the statute is that when the conduct of parties in living apart over a long lapse of time without cohabitation has made it probable that they cannot live together in happiness, the best interest of the parties and of the state will be promoted by a divorce."

In applying statutes like those last quoted, though it has been repeatedly urged upon the courts passing upon them that under them relief should be awarded only upon the application of the party not at fault, otherwise the grant of relief thus authorized would be allowing the wrongdoer to take advantage of his own misdeeds, nevertheless it would seem that the majority of the opinions in the courts regarding this question deliberately reject this contention and permit either party to maintain the action irrespective of who was at fault. The ultimate result seems to be rested in a wise discretion to be exercised by the trial judge.

Our statute, given in full above, declares in substance that the separation of the parties to the marriage contract must not be "induced or justified" by a cause in "whole or material part" chargeable to the one who seeks the divorce. In other words, the one materially at fault in causing the cessation of cohabitation should not be permitted to invoke this ground. What that "cause" or fault shall be the statute does not say. We are inclined to think that it refers to something aside from "extreme cruelty" or "when either party shall offer such indignities to the other as shall render his or her condition intolerable"--grounds for divorce already established when the law aforesaid was passed--otherwise the statute would be without meaning. We are rather inclined to conclude that what shall constitute this "cause" must be left to the trial court to determine in the exercise of a sound discretion, reviewable here, of course, whether the "cause" chargeable to or fault of the party who seeks a dissolution of the bonds of matrimony on this ground was sufficient to bar a divorce on that account. All the circumstances in the case should be closely scrutinized and carefully weighed in reaching the ultimate disposition of the matter.

In the case at bar we shall not attempt to review in detail the evidence in the record though the contention is made that this evidence was insufficient to establish the statutory ground above quoted. It would serve no useful purpose to spread the history of this marital disaster upon the reports of this Court. The parties were married January 21, 1933, and lived together until May, 1941. There were no children. At the time of the trial the wife was thirty-four years old and the husband forty-three. They had been living apart for nearly three years. The separation had commenced by the wife leaving the apartment where the parties had previously lived and while an attempt at reconciliation was thereafter made by the husband and discussed by both it failed utterly. She testified that there was absolutely no possibility of her...